Pentagon to defend lawyer limits (UPDATED)

Posted Sun, November 4th, 2012 1:54 pm by Lyle Denniston

(NOTE TO READERS: A reader who formerly worked in the Justice Department notes that an appeal can only go forward if the Solicitor General approves, and speculates that that has not yet happened. The post has been updated to take account of this observation.)

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The Obama Administration, seeking to take control within the military of the activities of lawyers for detainees at Guantanamo Bay, has signaled that it may appeal a federal judge’s order denying that authority. In a ruling in September (discussed in this post), Chief District Judge Royce C. Lamberth in Washington took back for the courts the power to supervise lawyers’ access to prisoners at the military facility on the island of Cuba. On Friday, lawyers for the Pentagon filed a formal notice of an intention to appeal that decision to the D.C. Circuit Court.

Such an appeal would have the potential to set up a major inter-branch conflict over who determines the role that volunteer lawyers may play as they seek to defend their prisoner clients at Guantanamo.

The Pentagon has insisted that it cannot operate the military facility that includes the detainees’ compound without controlling access by lawyers, under conditions totally controlled by the military. The detainees’ lawyers have argued that this is a matter for the courts under their review of habeas challenges by the detainees. Judge Lamberth agreed with the lawyers, and struck down a new program of limitations spelled out by the Pentagon.

Underlying this dispute is a critical issue of habeas law: if a prisoner loses the first attempt to win release through a habeas plea in civilian court, does that “terminate” that individual’s right of access to a lawyer? If it does, the Pentagon’s view is that lawyers must then sign a “memorandum of understanding” written by the Pentagon that strictly limits lawyers’ access. Under that view, the military commander at Guantanamo has the final veto power, beyond review in the courts, over lawyer access. Judge Lamberth rejected that claim.

The next step in this dispute will be for the D.C. Circuit to spell out a schedule for filing written legal arguments and possible hearings before a three-judge circuit panel. Beyond the court of appeals, the issue could go to the Supreme Court. When the Supreme Court in the 2008 decision in Boumediene v. Bush first recognized a constitutional right for Guantanamo prisoners to file habeas challenges to their confinement, it left it up to the district court judges in Washington, D.C., to determine how to process those cases. Among other arrangements the district judges made were orders governing lawyers’ access at Guantanamo.

Judge Lamberth concluded that those orders remain in effect, that the issue is one for the courts, and that the Pentagon’s substitute regime is invalid. There appears to be some doubt, both in Judge Lamberth’s view and certainly in the view of the detainees’ lawyers, whether the kind of order Judge Lamberth issued to settle the access issue is subject to an appeal. The Pentagon’s notice that it is going to appeal indicated that it will test that issue.

(Thanks to Howard Bashman of How Appealing blog for the alert to the notice of appeal.)

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.